8 January 2011

Tommy's Python: "It's just a flesh wound!"

Mater Peat Worrier is no devotee of Monty Python, but I chortled at her reaction to recent press reports covering Tommy Sheridan's still-to-be-lodged appeal against conviction, potential"new witnesses"who have suddenly appeared in support of that appeal, today's Herald piece on contradictions in the evidence one of them and the news that Sheridan is plotting still further legal action against his old foes the News of the World and the Metropolitan Polis. You'd think that extended exposure to our courts might have slaked Mr Sheridan's thirst for litigation, not least with the imminent prospect of a return to the Court of Session to mount one last Quixotic defence of the paper's appeal against the civil jury's verdict in the defamation action of 2006 and the grim prospect of Lord Bracadale's penal tones as he consigns Sheridan to a jail cell for an as yet indeterminate period. Apparently not. Like Monty Python's Black Knight, Sheridan's constant refrain is "it's just a flesh wound!"

In another related piece, James Doleman, author of the Sheridan Trial blog, has composed a fascinating piece for the Gurnian entitled "Blogging from court: helping justice to be seen to be done". James meditates on his - quite novel - experience of using a blog to cover, often much more extensively than the popular press, what transpired in the High Court in Glasgow. Like many novelties, one gets the sense that the experience was challenging for James and challenged the settled human architecture of the courtroom, most strikingly by subverting - by his very presence - the orthodoxy that the press are the simple proxy for and medium through which public interest in a case must be communicated.

Section 106 of the Criminal Procedure Scotland Act 1995 provides that a convicted person can, with leave, appeal on the basis of new evidence. The legislation (s 106(3)) reads:

"... a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on—

(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings..."

The Act qualifies this in the following respects:

(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.

(3B) Where the explanation referred to in subsection (3A) above or, as the case may be, (3C) below is that the evidence was not admissible at the time of the original proceedings, but is admissible at the time of the appeal, the court may admit that evidence if it appears to the court that it would be in the interests of justice to do so.

(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence—(a)which is—(i) from a person; or(ii) of a statement (within the meaning of section 259(1) of this Act) by a person,who gave evidence at the original proceedings; and

(b) which is different from, or additional to, the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

No doubt because The Winslow Boy was on the telly over Christmas. As I recall the play, Rattigan rather parsimoniously fails to furnish the audience with a satisfying trial scene, with all the traditional hysterics, heroics and fiery squibs.

Anent the Herald story today of the juror "Facebooking" her thoughts on the jury / trial. Plus the previous Kenneth Roy articles on how the BBC got their hands on tapes from the interviews to show on TV. What's the impact of that on future determinations do you think?

I know that I'm not happy with either of these events but if as the Herald suggests the juror should be legaly pursued then so should the BBC - and more importantly the leaker or purveyor of the tapes.

Lallands Peat Worrier, I first read The Winslow Boy at school, although I think I have seen every film and TV version. I'm sure it was part of my 2nd year curriculum alongside Macbeth. I wonder what prophecies Kane, Leckie and Curran had for Sheridan? I also wonder whether McCombes "was from his mother's womb untimely ripp'd."

I was thinking about the appeals process - and also about the implications for future trials if, as it appears people are handing over evidence, such as the tapes, to the press possibly before the Jury reaches a verdict. What impact is that likely to have? As for the facebook juror - dear oh dear!

Yes, I agree, perhaps only outdone by my 1st year reading, The Merchant of Venice.

I notice, Lallands, you haven't responded to my concerns, raised under another of your Sheridan blogs, about the prosecution tactics I described as mud-slinging. Do you have any thoughts on this aspect of the perjury trial or how it could be used to further any appeal?

Any appeal will have to be premised on the argument that some element or combination of elements of the trial process rendered it a "miscarriage of justice". It is not immediately apparent to me how a juror subsequently taking to the t'internet to express her ire and support for the defence position meaningfully impairs the fairness of the process.

On your second point, I dare say that in unusual trials of this sort, the press quite often get told inadmissible pieces of information before the trial has concluded which they do not report at the time, under fear of contempt of court. However, I agree that it the police tapes finding their way into the hands of the BBC is decidedly odd.

Lallands, I'm thinking of the deletions from the indictment and alterations to the indictment both due to a lack of corroboration (as you predicted) and others which I believe fell as a result of witness testimony. I understand that most, or perhaps all, of the charges based on evidence from witnesses paid by the News of the World were dropped, e.g. from Anvar khan, Katrine Trolle and Fiona McGuire. The exception may be the video tape although I suppose there is no way of telling whether it was believed or whether it was solely the anti-Sheridan SSP Executives who swung the jury. I wonder though whether the jury would've reached the same conclusion with only evidence relating to the 6 remaining rather than the full original 18 charges? Is this sort of tactical mud-slinging common and is it grounds for appeal?

I am unaware of any sources of concrete data on how often charges are dropped or amended in the course of Scottish jury trials. Not having a background in criminal practice, I also cannot give you a more "qualitative" sense about how regularly it occurs. Perhaps some other helpful soul might pipe up with a thought on that score.

That said, my sense is that changes to the indictment cannot be said to be particularly unusual.

The corroboration point - particularly on the suborning perjury charge - is a knotty one. While I admit to being a bit perplexed about what possible corroborating evidence the Crown might have thought it had, there may be perfectly reasonable explanations for this outside of my knowledge. For example, a legal sufficiency of evidence may have been founded on evidence which was subsequently held to be inadmissible or which was not lead - potentially for other strategic reasons. I can't really comment beyond that.

“I think of him more of a long nosed, elegantly coiffed Afghan pawing through his leather bound library whilst disdainfully inhaling a puddle of Armagnac in an immense crystal snifter. If he can also lift his leg over his shoulder and lick his balls...” ~ Conan the Librarian™

“... the erudite and loquacious Peat Worrier who never knowingly avoids a prolix circumlocution.” ~Love and Garbage

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Definition: "to worry peat" v.

"Peat worrying" is the little known or understood process for the extraction of cultural peat, practised primarily in the Lowlands of Scotland by aspirant urban rustics. Primary implements by means of which successful "worrying" is achieved include the traditional oxter-flaughter but also the sharp-edged kailyard and the innovative skirlie stramasher.